PARWATI Vs. JANABAI

JUDGEMENT

(1.) THE following two questions have been referred to Division Bench by the learned Single Bench Judge:

(2.) THE questions arise our of a Second Appeal filed by the original defendant Parwati against reversing judgment in the District Court. The facts giving rise to this litigation will be necessary to be detailed to comprehend the nature of the controversy between the parties. One Gadi and his son Sontosh formed a joint Hindu family having coparcenary property. That property consisted of land Khasra No. 639 with a total area of 11. 40 acres at Katol. It is an admitted position that on 23-5-1946, there was a partition by metes and bounds between Gadi on the one hand and his son Santosh on the other. The property was divided in to two shares, an area of 3. 80 acres having been allotted to Santosh and the remaining area of 7. 60 acres was allotted by Gadi to his share. Parwati the present appellant, is the wife of Santosh and the respondent Janabai alias Bani was the wife of Gadi. Gadi died on 8-10-1948. It appears, Gadi had acquired one acre of land from one Laxman, who had purchased it our of the land allotted to the share of Santosh. Thus at the time of his death, Gadi was in possession of 8. 60 acres of land. Janabai his widow, leased out 8. 60 acres of land to one Appaji. Santosh filed Civil Suit No. 80- A of 1949 against Janabai and the lessee Appaji claiming an injunction against both of them from trespassing into, trespassing into or interfering with , the property in dispute, that is, 8 acres and 60 gunthas of land left the right to have become the exclusive his father Gadi. Apparently Santosh claimed the right to have become the exclusive owner of the property on the death of his father Gadi. That suit was dismissed in the District Court in Civil Appeal No. 100-A of 1951. The appeal was allowed and Santosh was granted a decree. Against this judgment and decree, Janabai preferred Second Appeal. During pendency of the litigation in the District Court, Santosh died and his widow Parwati, the present appellant, was brought on record. The Second Appeal came to be decided in this Court on 19-11-1957 and that decision is reported in Jana alias Bani v. Parvati, 1958 nag LJ 416 = (AIR 1958 Bom 346 ). The learned Single judge, who allowed the appeal, held that the decision of the trial Court holding that the land devolved on the widow of Gadi as well as the son of Gadi in equal shares was not challenged by the appeal filed by the widow. The learned Single Judge took the view that the case was governed by Section 3 (2) of the Hindu Women's Rights to Property Act, 1937, and therefore, confirmed the dismissal of Santosh's suit in the trial Court. The learned Judge expressly left open the question whether the trial Court was right in holding that the son acquired half share in the property along with the widow, that is, whether Santosh could claim any share in the property along with Janabai.

(3.) IN view of the uncertainty of the rights of the parties, the second round of litigation seems to have commenced by the suit out of which the present appeal has arisen. Janabai filed the suit on 23-10-1958. In this suit, she claims a declaration that the plaintiff alone is entitled to 8. 60 acres to the exclusion of the defendant Santosh, and therefore, Santosh, or now his widow Parwati, should be permanently restrained from interfering with plaintiff's possession and enjoyment of this much land.